Google: Microsoft uses patents when products “stop succeeding”

A Google lawyer says that when Microsoft products fail in the market, the firm …

A Google patent lawyer says that the patent system is broken, and he accuses Microsoft of abusing the system. Speaking to the San Francisco Chronicle on Sunday, Google's Tim Porter pointed to Microsoft's attacks on Linux as an example of its broader corporate strategy.

"When their products stop succeeding in the marketplace, when they get marginalized, as is happening now with Android, they use the large patent portfolio they've built up to get revenue from the success of other companies' products," he said.

Microsoft has argued that the patent royalties it seeks from Android vendors are part of the natural evolution of a new industry. Porter disagrees.

"Microsoft was our age when it got its first software patent," he said. "I don't think they experienced this kind of litigation in a period when they were disrupting the established order. So I don't think it's historically inevitable."

Of course, the reason Microsoft didn't have to worry about patents during its first dozen years was because the courts and the patent office didn't allow patents on software until the 1980s. Indeed, the idea of patents on software alarmed Bill Gates, who wrote in 1991 (when Microsoft was already older than Google is now) that "the industry would be at a complete standstill" if software had been eligible for patent protection in the early days of the industry. He worried that "some large company will patent some obvious thing," enabling the company to "take as much of our profits as they want."

Today, Google finds itself in exactly the predicament Gates warned about 20 years ago. The Chronicle asked Porter the obvious question: should software be patentable? Porter refused to give a straight answer "There are certainly arguments" that copyright protection is "more appropriate" for the software industry, he said. But he would only say that "the current system is broken," and that there has been "a 10- or 15-year period when the issuance of software patents was too lax."

Porter pointed to the 2007 Teleflex decision as an important step toward reform. In that case, the Supreme Court raised the bar for obviousness and encouraged patent examiners to use common sense to reject obvious patents.

Yet in the four years since that decision, both the rate at which patents are granted and the amount of patent litigation has continued to skyrocket. Porter said he hoped the Supreme Court's decision would "put some teeth" in the law, but there's no sign that it has.

So why is Google unwilling to admit that we'd be better off without software patents? We can only speculate, but there are two likely explanations: one is that public companies like Google are inherently conservative institutions. They worry that taking "radical" positions might damage their reputations and cause PR problems. For example, future opponents in patent litigation could seize on comments opposing software patents as evidence that Google deliberately flouts the law.

Second, companies tend to delegate decisions about their patent policy stance to patent lawyers. And patent lawyers overwhelmingly believe that software (and almost everything else) should be eligible for patent protection.

Still, neither of these are solid reasons for Google's timid stance on patent reform. For example, Red Hat has consistently opposed software patents. This stance doesn't seem to have hurt it in the marketplace or in the courtroom, and the company has generated significant goodwill among programmers, especially in the free software community.

"There are only so many ways to describe a piston, but software patents are written by lawyers in a language that software engineers don't even understand," Porter said. "They're being used to hinder innovation or skim revenue off the top of a successful product."

He's exactly right. Which makes it a shame that he won't admit we'd be better off without them.

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It's certainly an interesting position Google is taking. On the one hand, they rail against software patents used against them; on the other hand, they insist that some of their patents are true and righteous, and must be protected by the legal system.

The problem is that Google is setting itself up as the arbitrator of "good" and "bad" patents, which it can't do if it wants to play. The Patent Office, and to a lesser extent, the legal system, determines which patents are good and bad.

The game Google is playing is, in my opinion, indefensible; they should adopt a position on patents all together, which would apply equally to their patents and patents that threaten them. Such as, no software patents altogether.

I think Google isn't saying software patents are bad, because it, like all the other companies that it supposedly criticizes, actually depend on software patents to defend its profits. Hence why their search engine algorithm is patented and they certainly won't like the weakening of protection for their cash cow.

So basically Google is a hypocrite if it wants other companies to play the game without software patents, but have software patents for its search engine algorithms. That's probably the real reason why Google isn't staunchly against software patents. Because it would really love to protect its search engine code.

Which is the bit that matters at this point whenever any company complains about software patents used against them. Software patents are fundamentally rotten, if a company isn't calling for their elimination then it's just the same old "well, it's only alright when we do it" talk as always and can just be ignored. It's all been hashed out by now, it's the same thing each time. When a corporation chooses to be fine with a world with software patents, no sympathy at all if they get bit, and hard to condemn whoever is going after them either.

That's probably the real reason why Google isn't staunchly against software patents. Because it would really love to protect its search engine code.

Trade Secrets are used for that though. Their search engine isn't open source or even documented nor should it be/need to be, it's a black box. Additionally, a huge part of their advantage is in infrastructure and the kind of institutional knowledge that cannot be easily transferred, even voluntarily. I'm not sure a search algorithm is something that can be reverse engineered easily, since the implementation is the whole point, not the idea of it. I guess software patents could give some tiny protection against leaks, but I don't see Google getting much value from them for any of their core products at all tbh which, as the article says, makes their position a little odd as they shouldn't really have anything to lose and plenty to gain.

The only thing worse than a patent is a patent lawyer. What have they done to us. The whole software industry have spent so much on the lawyers that could have contributed towards innovations. Bill Gates was right 20 years ago...

I think Google isn't saying software patents are bad, because it, like all the other companies that it supposedly criticizes, actually depend on software patents to defend its profits. Hence why their search engine algorithm is patented and they certainly won't like the weakening of protection for their cash cow.

So basically Google is a hypocrite if it wants other companies to play the game without software patents, but have software patents for its search engine algorithms. That's probably the real reason why Google isn't staunchly against software patents. Because it would really love to protect its search engine code.

The most innovative software isn't patented. Like the google search algorithm. That is because people will copy it because getting a patent means it goes public with the patent filing. Another example is high frequency trading algorithms of large financial institutions. If the algorithms were patented, the other finance programmers would just copy it or write software to try to exploit it to make money on the stock market. They will never get caught because the software is run server side. You can't compare the binaries and say they stole the algorithm because no one has the binaries.

I think Google isn't saying software patents are bad, because it, like all the other companies that it supposedly criticizes, actually depend on software patents to defend its profits. Hence why their search engine algorithm is patented and they certainly won't like the weakening of protection for their cash cow.

I believe their search algorithm is not patented, just well hidden.

Inscitia wrote:

The game Google is playing is, in my opinion, indefensible; they should adopt a position on patents all together, which would apply equally to their patents and patents that threaten them. Such as, no software patents altogether.

Absolutely. Playing both sides of the game is more than a little hypocritical regardless of whether they have used patents offensively in the past or not. For a Google lawyer to say that 'software patents are bad' and then not push for their abolition or significant change means that he's just spinning his wheels, generating some hot air and billable hours.

It's getting to be a tiresome rant from Google. As others have said, they need to take a stand one way or the other. If Google feels the patent system is broke, complaining about it won't fix it. Propose a fix and get law makers on board to fix it. Otherwise they need to play by the current rules, just like everyone else.

Hmm, imagine that. "Do no evil" Google talking out the side of their mouths again.

.... and what was that supposed to show?

Their entire core business is based around a patent.

Google knows how things are done and simply doesn't want to play ball. They're like a kid joining a soccer game then picking up the ball and running into the goal.

Google has software patents, this is no secret. But the patent you showed was Larry Page's graduate research that was patented and assigned to Stanford, as is required by Stanford's IP policies. What does that have to do with Google?

Uhm, Google's search algorithm isn't patented. It's a trade secret. They have zero interest in telling anybody how it works, as that would make it much more gameable.

Gary Patterson wrote:

I believe their search algorithm is not patented, just well hidden.

Pagerank is most definitely patented. No offense but this is pretty basic knowledge of Google history that you should probably be familiar with before jumping into a debate on Google's stance on software patents.

The problem is that Google is setting itself up as the arbitrator of "good" and "bad" patents, which it can't do if it wants to play. The Patent Office, and to a lesser extent, the legal system, determines which patents are good and bad.

The game Google is playing is, in my opinion, indefensible; they should adopt a position on patents all together, which would apply equally to their patents and patents that threaten them. Such as, no software patents altogether.

All the patents Google own are "good", everything else are "bad" and should not be enforceable.

Google has software patents, this is no secret. But the patent you showed was Larry Page's graduate research that was patented and assigned to Stanford, as is required by Stanford's IP policies. What does that have to do with Google?

So basically Google is a hypocrite if it wants other companies to play the game without software patents, but have software patents for its search engine algorithms. That's probably the real reason why Google isn't staunchly against software patents. Because it would really love to protect its search engine code.

A) Yes they are quite hypocritical on this point. As are many of publicly traded companies. RedHat is probably the only publicly traded company that can take a anti-patent stance outright.B) Their search engine code is at no threat when it comes to losing that patent. Software patents have this big hole in them - they aren't required to produce an claim implementing code. And in any case, copyrights cover patented code regardless of the validity of a patent.C) Pretty much anyone and their grandma outside US have implemented Stanford's PageRank patented algorithm or a derivative.(Why Stanford's? Google does not own that patent.)

Google has software patents, this is no secret. But the patent you showed was Larry Page's graduate research that was patented and assigned to Stanford, as is required by Stanford's IP policies. What does that have to do with Google?

The patent is exclusively licensed to Google.

Yes, because they had to buy the rights from Stanford. I think Google is being hypocritical with their stance on software patents, but this particular example is really, really awful and nonsensical.

Software patents are just one of these things the internet rails against but probably aren't really that bad in real life.

Real life has stupid problems, but that's what happens when real people live in the real world. Inefficiencies and bad things happen, the trick is to work with them instead of attacking the very basis of their existence.

Uhm, Google's search algorithm isn't patented. It's a trade secret. They have zero interest in telling anybody how it works, as that would make it much more gameable.

Gary Patterson wrote:

I believe their search algorithm is not patented, just well hidden.

Pagerank is most definitely patented. No offense but this is pretty basic knowledge of Google history that you should probably be familiar with before jumping into a debate on Google's stance on software patents.

The game Google is playing is, in my opinion, indefensible; they should adopt a position on patents all together, which would apply equally to their patents and patents that threaten them. Such as, no software patents altogether.

That's silly; saying "the patent office has issued a lot of ridiculous patents that should be invalidated, but ours don't fall into that category" is certainly a valid position. I'm not familiar with most of Google's patents and since they are a software company I think it's safe to assume that they are mostly crap, but Pagerank is a good example of exactly the kind of thing that patents were meant to protect. "Generating Meeting Requests and Group Scheduling From a Mobile Device" and "Context sensitive menu system/menu behavior ", not so much.

It would have been helpful if this article had elaborated on what kind of patents we are talking about. Are those actually software patents?

The patents from the MS vs Moto: 5,579,517 (”517″) Common name space for long and short file names 5,758,352 (”352″) Common name space for long and short file names 6,621,746 (”746″) Monitoring entropic conditions of a flash memory device as an indicator for invoking erasure operations 6,826,762 (”762″) Radio interface layer in a cell phone with a set of APIs having a hardware-independent proxy layer and a hardware-specific driver layer 6,909,910 (”910″) Method and system for managing changes to a contact database 7,644,376 (”376″) Flexible architecture for notifying applications of state changes 5,664,133 (”133″) Context sensitive menu system/menu behavior 6,578,054 (”054″) Method and system for supporting off-line mode of operation and synchronization using resource state information 6,370,566 (”566″) Generating meeting requests and group scheduling from a mobile device

Some of them used in MS vs TomTom and threatened against Linux in general. The list contains all exclusively software patents.

Software patents are just one of these things the internet rails against but probably aren't really that bad in real life.

Err, software patents are going to be discussed in detail on the internet because software developers likely spend a disproportionate amount of time on the internet. But, by all means, define "real life."

Yawn, the logic of this subject is fairly simple. Microsoft made a very large investment in research and development over decades. As part of that effort they accumulated a large number of patents. Google as a late comer benefits from that effort because their products are built on the foundation that Microsoft played a big part in creating. So, they have to pay some royalties on Microsoft's patents. Its not anything like a perfect process. But its not particularly unreasonable either. For all their moaning Google is hardly poor or free from the desire to make a profit. Nothing that Microsoft is doing is preventing Google from establishing market share with Android. The story with Apple appears to be different because Apple seems to want to use its patents to exclude competition.

Microsoft made a very large investment in research and development over decades. As part of that effort they accumulated a large number of patents.

Rather, they file as many as possible to make software development a very hostile field to be in. They stated as much back in 1998 when they basically said "we'll attack Linux with patents if we have to."

Of course, virtually every major software vendor does this, some defensively, some opportunistically. This makes it possible to make using non-Microsoft platforms painful and expensive, and to "defend" against suits from other vendors (which tells you that amassing warchests of patents is solving the problem in exactly the wrong way.)

Quote:

Google as a late comer benefits from that effort because their products are built on the foundation that Microsoft played a big part in creating.

Fortunately, few if any software developers use patents for their intended purpose but explicitly avoid it. Of course, what Microsoft is suing vendors over also applies to the Linux kernel so it goes beyond just Google, and I seriously doubt that anyone was looking over Microsoft's patents when they implemented the parts of the kernel in question.

Make software patents last, let's say five years or two if you aren't making use of them (patent trolling).

Problem solved?

It would be a step maybe, but there's a problem. Can you define software patent? h.264 encoding and decoding contains lots of patents on parts of the process. Are they software patents? We have dedicated hardware that implement those very processes, which can also be implemented on a generic processor using software.

The issue isn't nearly as cut and dry as people would like you to think. It's a complicated problem.

Took in a manner which was not intended by it's author/owner and giving nothing back to said owner/author for it's use.

But the author didn't have anything taken. They still have their source code, and they still have the idea. I have yet to see any evidence of copyright violation. Also, they aren't the owner but have a limited right to control who can use the implementation.

Unfortunately, software patents don't cover implementations like real patents but general ideas that cover all implementations. And that's why they're broken and no one uses them for their intended purpose.

Quote:

Stole is shorter and the context is understood by those who follow the industry and are not rabid fanboys (of any platform).

Actually, "stole" is a poor word to use in this context. It's like listening to the RIAA/MPAA whine about how they're being "stolen" from as if someone broke into their houses and made off with their jewelry.

It is hard for Google not to be a hypocrite to some degree because their search engine relies on patent protection. If they rally against software patents then they will be under pressure to "set an example" which they won't do.

But it is good that at least one of the big players acknowledges that the patent system is broken and is badly in need of reform.

The comments about MS are completely true, Windows Mobile 7 launched a year ago and it has so far been a failure, and MS instead of changing its ways are just using dirty tricks to try to bring down the competition to a level they can compete with. They are using their patent portfolio to try to drive up the cost of android devices, create FUD, and bully companies to support their crappy mobile OS.

MS fears what has happened with the Mobile OS and Tablet sectors because they have been marginalized and consumers are doing quite well in a ecosystem where MS has little to no presence/influence.

Timothy B. Lee / Timothy covers tech policy for Ars, with a particular focus on patent and copyright law, privacy, free speech, and open government. His writing has appeared in Slate, Reason, Wired, and the New York Times.